01/28/2013

In The Name Of Liberty: Creating A Disturbance By Writing The Fourth Amendment On Your Chest

Are you such a devoted fan of the United States Constitution that you're willing to turn your chest into a billboard for the bill of rights? Are you prepared to make this sacrifice despite the fact that you are exceptionally fit and it's virtually certain that baring your chest in public will attract attention? Will you persevere in your conviction even when you're flying to your grandfather's funeral? Well then, you and Aaron Tobey are sure to get along:

On December 30, 2010, Aaron Tobey was scheduled to fly from Richmond to Wisconsin to attend his grandfather’s funeral. Mr. Tobey waited until there was a short line at the TSA screening checkpoint and then commenced the screening process by presenting his boarding pass and identification to the pre-screening agent. Mr. Tobey proceeded to the conveyor belt area and placed his belt, shoes, sweatshirt, and other carry-on items on the conveyor. Mr. Tobey was then diverted by Appellant-Agent Smith from the standard metal detector used as the primary screening apparatus to the AIT scanning unit for enhanced screening.In anticipation that he might be subjected to enhanced screening, Mr. Tobey had written the text of the Fourth Amendment on his chest as he believed AIT scanning was unconstitutional. Before proceeding through the AIT unit, Mr. Tobey calmly placed his sweatpants and t-shirt on the conveyor belt, leaving him in running shorts and socks, revealing the text of the Fourth Amendment written on his chest. Agent Smith advised Mr. Tobey he need not remove his clothes. Mr. Tobey calmly responded that he wished to express his view that TSA’s enhanced screening procedures were unconstitutional.At this point, Agent Smith radioed for assistance. As commanded by her supervisor, Appellant-Agent Jones, Agent Smith ordered Mr. Tobey to remain in front of the AIT unit. Agent Jones and unknown Appellant-Agent Doe then asked RIC police for assistance. At no point did Mr. Tobey refuse to undergo the enhanced screening procedures. Nor did he decline to do anything requested of him. In fact, Mr. Tobey alleges that he "remained quiet, composed, polite, cooperative and complied with the requests of agents and officers."RIC police officers Vann and Mason arrived on the scene and immediately handcuffed and arrested Mr. Tobey. None of the TSA agents informed RIC police of what occurred at the screening station, nor did RIC police ask. Officer Vann escorted Mr. Tobey to a side area and informed him he was under arrest for creating a public disturbance. Agent Doe searched Mr. Tobey’s belongings, removing unidentified items. Officer Mason then collected Mr. Tobey’s belongings with assistance from Agents Smith and Doe.Mr. Tobey was then taken to the RIC police station where Officer Vann and other officers questioned Mr. Tobey and threatened him with various criminal sanctions. Mr. Tobey was eventually charged with disorderly conduct in a public place. The officers later released Mr. Tobey after consulting with an Air Marshal from the Federal Air Marshal’s Joint Terrorism Task Force. In total, Mr. Tobey was held for over an hour. Mr. Tobey boarded the plane without further incident. The Commonwealth Attorney for Henrico County subsequently dropped the disorderly conduct charge.

Tobey sued TSA for $250K claiming that his Fourth Amendment and First Amendment rights had been violated. (Download his complaint.) A divided 4th circuit panel held that the First Amendment claim could proceed and is likely to prevail if the facts hold up, and that even the Fourth Amendment claim had merit except that Tobey failed to appeal the district court's dismissal of that count on grounds of qualified immunity:

Even conceding that Mr. Tobey’s behavior was ‘bizarre,’ bizarre behavior alone cannot be enough to effectuate an arrest. If Appellants caused Mr. Tobey’s arrest solely due to his ‘bizarre’ behavior, Appellants’ cannot be said to have acted reasonably.

In dissent, Judge J. Harvie Wilkinson wrote:

Had this protest been launched somewhere other than in the security-screening area, we would have a much different case. But Tobey’s antics diverted defendants from their passenger-screening duties for a period, a diversion that nefarious actors could have exploited to dangerous effect. Defendants responded as any passenger would hope they would, summoning local law enforcement to remove Tobey—and the distraction he was creating — from the scene.

Eugene Volokh at Volokh Conspiracy is also not so sure that Tobey will ultimately prevail:

The question would be whether Tobey was arrested because the officials thought his undressing suggested something dangerous was afoot (no First Amendment violation, even if it’s a Fourth Amendment violation) or because of his display of the Fourth Amendment and accompanying speech (which would make the arrest a First Amendment violation).

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In The Name Of Liberty: Creating A Disturbance By Writing The Fourth Amendment On Your Chest

Are you such a devoted fan of the United States Constitution that you're willing to turn your chest into a billboard for the bill of rights? Are you prepared to make this sacrifice despite the fact that you are exceptionally fit and it's virtually certain that baring your chest in public will attract attention? Will you persevere in your conviction even when you're flying to your grandfather's funeral? Well then, you and Aaron Tobey are sure to get along:

On December 30, 2010, Aaron Tobey was scheduled to fly from Richmond to Wisconsin to attend his grandfather’s funeral. Mr. Tobey waited until there was a short line at the TSA screening checkpoint and then commenced the screening process by presenting his boarding pass and identification to the pre-screening agent. Mr. Tobey proceeded to the conveyor belt area and placed his belt, shoes, sweatshirt, and other carry-on items on the conveyor. Mr. Tobey was then diverted by Appellant-Agent Smith from the standard metal detector used as the primary screening apparatus to the AIT scanning unit for enhanced screening.In anticipation that he might be subjected to enhanced screening, Mr. Tobey had written the text of the Fourth Amendment on his chest as he believed AIT scanning was unconstitutional. Before proceeding through the AIT unit, Mr. Tobey calmly placed his sweatpants and t-shirt on the conveyor belt, leaving him in running shorts and socks, revealing the text of the Fourth Amendment written on his chest. Agent Smith advised Mr. Tobey he need not remove his clothes. Mr. Tobey calmly responded that he wished to express his view that TSA’s enhanced screening procedures were unconstitutional.At this point, Agent Smith radioed for assistance. As commanded by her supervisor, Appellant-Agent Jones, Agent Smith ordered Mr. Tobey to remain in front of the AIT unit. Agent Jones and unknown Appellant-Agent Doe then asked RIC police for assistance. At no point did Mr. Tobey refuse to undergo the enhanced screening procedures. Nor did he decline to do anything requested of him. In fact, Mr. Tobey alleges that he "remained quiet, composed, polite, cooperative and complied with the requests of agents and officers."RIC police officers Vann and Mason arrived on the scene and immediately handcuffed and arrested Mr. Tobey. None of the TSA agents informed RIC police of what occurred at the screening station, nor did RIC police ask. Officer Vann escorted Mr. Tobey to a side area and informed him he was under arrest for creating a public disturbance. Agent Doe searched Mr. Tobey’s belongings, removing unidentified items. Officer Mason then collected Mr. Tobey’s belongings with assistance from Agents Smith and Doe.Mr. Tobey was then taken to the RIC police station where Officer Vann and other officers questioned Mr. Tobey and threatened him with various criminal sanctions. Mr. Tobey was eventually charged with disorderly conduct in a public place. The officers later released Mr. Tobey after consulting with an Air Marshal from the Federal Air Marshal’s Joint Terrorism Task Force. In total, Mr. Tobey was held for over an hour. Mr. Tobey boarded the plane without further incident. The Commonwealth Attorney for Henrico County subsequently dropped the disorderly conduct charge.

Tobey sued TSA for $250K claiming that his Fourth Amendment and First Amendment rights had been violated. (Download his complaint.) A divided 4th circuit panel held that the First Amendment claim could proceed and is likely to prevail if the facts hold up, and that even the Fourth Amendment claim had merit except that Tobey failed to appeal the district court's dismissal of that count on grounds of qualified immunity:

Even conceding that Mr. Tobey’s behavior was ‘bizarre,’ bizarre behavior alone cannot be enough to effectuate an arrest. If Appellants caused Mr. Tobey’s arrest solely due to his ‘bizarre’ behavior, Appellants’ cannot be said to have acted reasonably.

In dissent, Judge J. Harvie Wilkinson wrote:

Had this protest been launched somewhere other than in the security-screening area, we would have a much different case. But Tobey’s antics diverted defendants from their passenger-screening duties for a period, a diversion that nefarious actors could have exploited to dangerous effect. Defendants responded as any passenger would hope they would, summoning local law enforcement to remove Tobey—and the distraction he was creating — from the scene.

Eugene Volokh at Volokh Conspiracy is also not so sure that Tobey will ultimately prevail:

The question would be whether Tobey was arrested because the officials thought his undressing suggested something dangerous was afoot (no First Amendment violation, even if it’s a Fourth Amendment violation) or because of his display of the Fourth Amendment and accompanying speech (which would make the arrest a First Amendment violation).